This is an important issue and very relevant to people, who have entered the United States unlawfully and later on want to marry a US citizen or gain some kind of other immigration benefit.
What is unlawful presence?
A very common unlawful presence scenario is when someone enters the country on a tourist visa, which has a set expiry date, and overstays. If you don’t leave the country before the expiry date, you start to accumulate unlawful presence.
Unlawful presence can be a bar to immigrating to the United States. If you have more than 180 days of unlawful presence, you are not allowed to enter the U.S. or adjust status (banned) for 3 years. After 1 year of unlawful presence, the ban goes up to 10 years. For example, if you’ve entered the United States on a tourist visa and have overstayed for more than 180 days and now leave the country to get a student visa or any other kind of visa, you will be barred from entering the United States for 3 years. This bar is very rigid. Even if you marry a US citizen a few months after leaving the country, you would still be barred for 3 years.
(this blog post assumes that the foreign national requires a waiver because they accrued unlawful presence by entering without inspection or departed the United States after the expiration of the period of stay authorized by the Attorney General – for more than 180 days).
However, you can obtain a waiver of the three or ten year bar by applying for a waiver. I will discuss these waivers in my next post.
Exemptions from the unlawful presence bar.
Two examples are students and J1 visas, which don’t have expiration dates and are valid for the duration of status.
For more information or for help with your particular case, please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186.
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